The aim of this thesis is to explore the differences and similarities between Justice Antonin Scalia’s textualist approach to interpreting the Constitution and Justice Stephen Breyer’s Living Constitution approach (also called the evolutionist approach) by applying these disparate legal theories to Schwarzenegger v Entertainment Merchants Association, a case currently pending before the Supreme Court whose resolution centers on the interpretation of the First Amendment. The textualist approach relies primarily on interpreting the original meaning of the text of the Constitution, and attempting to decide cases in a way that is faithful to an amendment’s words as written (Rossum et al. 4). The Living Constitution, or evolutionist approach to constitutional interpretation, contends that the meaning of the Constitution evolves with the standards of society, and the purpose or intent behind the Constitution or an amendment is as important, if not more so, than the literal language when interpreting a Constitutional amendment as it applies to actual cases as they arise (8). These two approaches are fundamentally oppositional, and Justices Scalia and Breyer are the very embodiment of these approaches on the Supreme Court today; each man avidly defends his respective approach in his opinions and other written works, and each exhibits the logic of these approaches in his decisions. The purpose of choosing a case that is undecided (at the time of this writing) is to explore and flesh out the actual decision-making process of both Justices and their constitutional theories, rather than merely critiquing their decisions and holdings in a case that has already been adjudicated. This exploration is particularly useful because it allows one to decipher how these approaches are similar and different in interpreting the Constitution.

The present research project will explore a case study of the experiment of Pandrogeny as conducted by artists Genesis and Lady Jaye Breyer P-Orridge, arguing that it is best understood as art that performs religion. Utilizing behavior and body modification, this collaborative experiment was intended to create a third, androgynous being, coming into existence through a merging of their identities and referred to as “Breyer P-Orridge.” The experiment was conducted between 1993 and 2007, when Lady Jaye passed away; however, Genesis, in various ways, continues Pandrogynic explorations into the present. The case of this project being religious for Genesis will be made by examining a recent solo exhibition displaying Genesis’s work as well as the performative dimensions of Pandrogeny from its inception to the shift that occurred with Lady Jaye’s death.

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